Tracking the impact of neuroscience in the courtroom

Cases drawing on neuroscientific evidence have doubled in the United States between 2006 and 2009, but less is known about its impact in Australia. 

American prosecution and defence teams have called on the developing science as evidence in arguments about defendants’ responsibility and their competence to stand trial. 

In civil cases, brain scans are regularly being admitted to test claims of pain and suffering that have until now been difficult to prove. Similar cases are appearing in Australia. 

In New South Wales, a recent judgment by Supreme Court Justice Monika Schmidt (LLB ’79) treated post-traumatic stress disorder (PTSD) as a bodily injury, challenging a longstanding legal distinction between ‘mental disorders’ and physical damage, where recovering compensation for purely mental injury has traditionally been heavily circumscribed. 

Meanwhile, in Victoria, a forthcoming challenge to the legality of poker machines is expected to draw heavily on gambling devices’ impact on the hard-wired rewards system in players’ brains. 

To capture and analyse the impact of such cases, the University of Sydney and Macquarie University have pooled their data on ‘neurolaw’ in civil and criminal cases to keep track of neuroscience’s impact in the courtroom. 

In December 2015, Justice Schmidt launched the Australian Neurolaw Database, a collaboration between the University of Sydney and Macquarie University, where the project began. 

The database contributes an Australian perspective to international research on the impact of neuroscience on the development of law and on the administration of justice. 

Hosted by Macquarie University, the database is a publicly available resource comprising a collection of Australian cases involving neuroscience evidence spanning crime, sentencing decisions, tort claims, professional regulation, testamentary capacity, end-of-life decision making and more. 

“The emerging field of neurolaw raises so many ethical and legal issues that it is important that we be aware of the direction the courts are moving in.” 

The project has so far collected more than 100 fully coded cases and will be continually updated with contributions from the research team, as well as students and members of the public who can contribute new cases to the site via a wiki feature. 

The project is compatible with international collections including a US database under development at the MacArthur Foundation Research Network on Law and Neuroscience at Vanderbilt University. 

Neuroscience research is still in its infancy and the Australian legal community remains skeptical, according to Dr Sascha Callaghan (LLB ’99 BEc(SocSc) ’95 MBioethics ’11 PhD(Medicine) ’14). 

As she explains: “Criminal sentences have been reduced because of evidence of the effects of brain damage caused by dementia and Parkinson’s disease, for example. And end-of-life decisions have been informed by neuroscience evidence of consciousness, while others have turned to it to help prove the existence of injuries such as pain and the lifelong effects of childhood trauma. 

“But despite the hype, how people behave is, for the moment, still more persuasive for courts than what we can see on brain scans.” She adds that “the real difference neuroscience is likely to produce over the next few years is that the community’s intuitive responses, whether or not a person should be held responsible for actions, whether they are telling the truth about pain and suffering, is also likely to change as science informs community opinions on these things”. 

Her view is shared by Dr Allan McCay (PhD(Law) ’13), a lecturer in Criminal Law at the University of Sydney and senior researcher at the Centre for Agency Values and Ethics (CAVE) at Macquarie University. 

He says “the emerging field of neurolaw raises so many ethical and legal issues that it is important that we be aware of the direction the courts are moving in”. 

The Australian Neurolaw Database will be a vital resource in doing so, and plans are underway to widen its scope. The researchers are looking to partner with international projects in the next phase of the project, to develop an integrated global research database for neurolaw.